Duane Morris Class Action Review - 2023 - Report - Page 344
appeal rejected the defendants’ various attacks on the commonality requirement,
including that plaintiffs’ due process claims were too “divergent” and required
individualized fact questions relevant to the circumstances surrounding the plaintiffs’
request for a hearing, or not, as well as considerations of waiver, standing, and
implications stemming from the voluntary payment doctrine. Id. at 1162. The court of
appeal found that the defendants’ purported individualized inquiries were irrelevant to
answer the common question of whether the defendants imposed fines in violation of
prohibitory law and an ultra vires act done without authority. Id. at 1163. The court of
appeal agreed with the trial court’s determination that all of the plaintiffs’ claims arise
from the same “course of conduct,” namely, the defendants’ imposition of fines under
the Ordinance. Id. at 1164. Furthermore, the court of appeal rejected Gretna’s claims
that the trial court had failed to perform the required “rigorous analysis” in certifying the
class, and instead holding that the trial court had “correctly identified the controlling law”
and properly considered each of the elements required for class certification under the
applicable codes of civil procedure. Id. at 1171.
Massachusetts
In 2022 Massachusetts addressed the novel situation of what happens to a class action
lawsuit when the named plaintiff dies before class certification.
In Kingara, et al. v. Secure Home Health Care Inc., 489 Mass. 393 (Mass. Mar. 28,
2022), the plaintiff, a licensed practical nurse, filed suit against the defendant, an inhome care provider for the elderly, alleging causes of action arising under the state
wage act, minimum fair wage law, and overtime law. Id. at 394. The plaintiff died before
the plaintiff’s counsel had filed a motion for class certification. Thereafter, the plaintiff’s
counsel filed a motion to send notice to the putative class informing them of the
plaintiff’s death and inviting them to join the action. The plaintiff’s counsel also sought
an order requiring the defendant to identify the putative class members’ names and
addresses and extend the tracking order deadlines to allow substitution of another
putative class representative. The trial court granted the motions, and the defendant
appealed. Id. The Massachusetts Supreme Judicial Court explained that, upon a client’s
death, a lawyer’s authority to act for the client terminates. Because the plaintiff had not
filed a motion for class certification before he died, the plaintiff’s counsel could not take
further action absent a motion by the deceased’s legal representative. Id. at 395. In
addition, although counsel for a certified class has a continuing obligation to each class
member, the appeals court concluded that counsel does not have any authority to act
for a putative class when no motion for class certification was pending, counsel had not
located the deceased client’s representative, and counsel had not identified any other
putative class member to serve as a putative class representative. Id. at 396.
The plaintiffs in Baranofsky, et al. v. Rousselot Peabody, 2022 Mass. Super. LEXIS 25
(Mass. Super. Ct. June 13, 2022), brought a class action against Rousselot Peabody,
Inc. (Rousselot), the operator of a gelatin processing plant, for claims of nuisance,
negligence, and trespass resulting from the “noxious, disgusting odors” emanating from
the plant. Id. at *1. The plaintiffs alleged that the odors caused headaches, nausea, and
vomiting, and interfered with the use and enjoyment of their respective properties.
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Duane Morris Class Action Review – 2023
